Make a Difference

Bruce Fein, former general counsel to the FCC in the Reagan
administration (Senate Judiciary Committee hearing on NSA and domestic spying,
2/28/06)

“The theory invoked by
the president to justify eavesdropping by the NSA in contradiction to FISA would
equally justify mail-openings, burglaries, torture, or internment camps – all in
the name of gathering foreign intelligence. Unless rebuked, it will lie around
like a loaded weapon, ready to be used by an incumbent who claims an urgent
need.”

“The burden of persuasion
ought to be on the president to explain why FISA is unworkable, not on us to
explain why a secret program we know nothing about is
unnecessary.”

“What about the FISA
statute – doesn’t the NSA program violate its expressed terms? My answer to that
question is: Yes. The text is unambiguous. A person is guilty of offense if he
intentionally engages in electronic surveillance except as authorized by
statute.”

“Do the president’s
inherent wartime powers allow him to ignore FISA? My answer is: No… warrantless
wiretapping of Americans inside the United States who may have nothing to do
with Al Qaida does not qualify as incidental wartime
authority.”

“When FISA forbids
electronic surveillance without a court order, except for 15 days, while the
AUMF permits necessary and appropriate force, it seems to me quite simply
bizarre to argue that electronic surveillance is thereby authorized without a
warrant.”

“One would involve
congressional approval of the program, which seems difficult – really impossible
– to me, unless we know what the program is. And we do not know what the program
is. But the Foreign Intelligence Surveillance Court has the standing, the
expertise, and the record for secrecy to make that kind of a
determination.”

Jim Harper, director of information policy studies at the
CATO Institute, a conservative think tank, (ACLU National Town Hall on NSA
Spying, 2/20/06)

“The premise of the
legal arguments about the President’s inherent authority, the scope of FISA, the
authorization of military force, and the Fourth Amendment question is that we
are in a state of war. This is obviously a very different war than any
we’ve encountered before. It’s not objectively verifiable at any given
time. There’s no space where shooting is happening regularly. We
need more information and a better conversation about what is actually happening
in order to address the reality.”

“It’s true that we
all recognize there are certain cases where certain details – location of the
troops, the precise technology used – shouldn’t be revealed. But we’re not
children; we’re not so stupid as to think Osama bin Laden is shocked to learn
we’re trying to overhear what he’s saying. The secrets that this
administration thinks must be kept are ridiculous. They also believe in
selectively releasing secrets.”

“Giving the Vice
President power to declassify information selectively and not for security
reasons, is an example of the kind of porous transparency that we do not
need. We need some meaningful accountability so that we can measure the
threat.”

John Dean, former counsel in the Nixon administration,
(ACLU National Town Hall on NSA Spying, 2/20/06)

“In a parallel
situation today, I would tell this President that he has a very serious
problem. I’m not sure if there’s a cancer yet, I’m not sure if it’s
metastasizing, but the diagnosis is not healthy. He has made such a radical
reading of his powers, not unlike Nixon. And those operating on his behalf
have pursued that policy that it could well end up where we did with the Nixon
White House.”

“There’s
no question in my mind that this President has already committed one or more
technically impeachable offenses.”

"I
think it should come before the FISA court, but I don't know how it works," Mr.
Roberts said. "You don't want to have a situation where you have capability that
doesn't work well with the FISA court, in terms of speed and agility and hot
pursuit. So we have to solve that problem."

"I
think it's the function and the oversight responsibility of the committee," he
said, adding, "That might sound strange coming from me."

“It's the Republicans on the committee, my
staff and myself, who have been really — I don't want to say pressuring, but
trying to come up with a reasonable compromise that will settle this issue. It
was our activity that brought them along to this point, plus the possibility of
an investigation."

"We would be much more in concert with the
Congress and everybody else and the FISA court judges" if the court oversaw the
program."

Sen. Olympia Snowe (R-ME), member of the Senate Select
Committee on Intelligence (“Senate Chairman Splits with Bush on Spy Program,”
New York Times, 2/18/06)

"I think we do have to have judicial review,"
she said, adding, "Whether it's the FISA approach or not I think remains in
question, but it can't go on in perpetuity, and it can't be unfettered
warrantless surveillance."

“This monarchial doctrine emerges from the administration’s
stance that warrantless surveillance by the National Security Agency targeting
American citizens on American soil is a legal exercise of the president’s
inherent powers as commander in chief, even though it violates the clear
language of the 1978 Foreign Intelligence Surveillance Act, which was written to
regulate wartime surveillance.”

“Administration supporters incoherently argue that the AUMF
also authorized the NSA surveillance – and that if the administration had asked,
Congress would have refused to authorize it. The first assertion is implausible:
None of the 518 legislators who voted for the AUMF has said that he or she then
thought it contained the permissiveness the administration discerns in
it…Equally implausible is the idea that in the months after Sept. 11, Congress
would have refused to revise the 1978 law in ways that would authorize, with
some supervision, the NSA surveillance that, even in today’s more contentious
climate, most serious people consider conducive to national security.”

“…the
Constitution’s plain language, which empowers congress to ratify treaties,
declare war, fund and regulate military forces, and make laws “necessary and
proper” for the execution of all presidential powers. Those powers do
not include deciding that a law – FISA, for example – is somehow exempted from
the presidential duty to “take care that the laws be faithfully
executed.”

Rep. Heather Wilson (R-NM), Chairwoman of the House
Intelligence Subcommittee on Technical and Tactical Intelligence (Republican
speaks Up, Leading Others to Challenge Wiretaps,” New York Times,
2/14/06)

"I
think the argument that somehow, in passing the use-of-force resolution, that
that was authorizing the president and the administration free rein to do
whatever they wanted to do, so long as they tied it to the war on terror, was a
bit of a stretch. And I don’t think that’s what most members of Congress felt
they were doing.”

Sen. Lindsey Graham (R-SC), member of the Judiciary
Committee and the Armed Services Committee (“Republican Speaks Up, Leading
Others to Challenge Wiretaps,” New York Times, 2/14/06)

“I think there’s two
things going on. There’s an abandonment of you-broke-the-law rhetoric by the
Democrats and a more questioning attitude about what the law should be by the
Republicans. And that merges for a very healthy debate.”

Sen. Susan Collins (R-ME), former member of Senate
Subcommittee on Oversight Government Management (“Republican Speaks Up, Leading
Other to Challenge Wiretaps,” New York Times, 2/14/06)

“There is considerable
concern about the administration’s just citing the president’s inherent
authority or the authorization to go to war with Iraq as grounds for conducting
this program. It’s a stretch.”

Rep. Heather Wilson (R-NM), Chairwoman of the House
Intelligence Subcommittee on Technical and Tactical Intelligence (“Republican
Who Oversees N.S.A. Calls for Wiretap Inquiry,” New York Times, 2/08/06)

The lawmaker…said she had
‘serious concerns’ about the surveillance program. By withholding information
about its operations from lawmakers, she said, the administration has deepened
her apprehension about whom the agency is monitoring and why.

Ms. Wilson said… that she
considered the limited Congressional briefings to be ‘increasingly untenable’
because they left most lawmakers knowing little about the program. She said the
House Intelligence Committee needed to conduct a ‘painstaking’ review, including
not only classified briefings but also access to internal documents and staff
interviews with N.S.A. aides and intelligence officials.

“This ‘statutory force resolution’ argument that you’re
making is very dangerous in terms of its application for the future,” Graham
told Gonzales. “When I voted for it, I never envisioned that I was giving to
this president or any other president the ability to go around FISA carte
blanche.”

“The whole history of America is a
history of balance,” Specter said, referring to security and civil liberties. “I
think there’s a chance the administration might take up the idea of putting this
whole issue before the Foreign Intelligence Surveillance Court… I think they are
seeing concerns in a lot of directions from all segments: Democrats and
Republicans in all shades of the political spectrum.”

(Senate hearing on NSA and
Domestic Spying, 2/06/06)

“The Foreign Intelligence
Surveillance Act was passed in 1978, and has a forceful and blanket prohibition
against any electronic surveillance without a court order. That law was signed
by President Carter with a signing statement that that was the exclusive way for
electronic surveillance. There is beyond, a constitutional issue as to whether
the president has inherent powers under Article 2 of the Constitution to
undertake a program of this sort. If the president has constitutional authority,
that trumps and supersedes the statute. The Constitution is the fundamental law
of the county, and a statute cannot be inconsistent with a constitutional
provision.”

“It is clear that there are serious
legal and constitutional questions concerning whether the Fourth Amendment’s
reasonable requirement for searches requires the president, after a period of
time, after a program has been in place for a period of time, to come to the
Congress for statutory authorization to continue such actions. But what is not
debatable is that both from a constitutional as well as from a policy point of
view, the president and the American people would be stronger – this country
would be stronger and the president would be stronger – if he did so, if he did
come to the Congress for such specific statutory authorization.”

“I just really believe it’s in the
country’s best interest, the president’s best interest, the war on terrorism’s
best interest, which is what we’re all concerned about, some four years or so
after this program has been initiated for the president to come to Congress and
to get – for us – the Intelligence Committee, which is the committee that has
jurisdiction, to take a look at this program, to get the briefing on the
program, and then to see whatever changes in the law have to be made and to deal
with it.”

Sen. Lindsey Graham (R-SC), member of the Judiciary
Committee and the Armed Services Committee (Senate hearing on NSA and Domestic
Spying, 2/06/06)

“The FISA statute – if you look at the legislative language,
they made a conscious decision back in 1978 to resolve this two-lane debate.
There’s two lanes you can go down as commander in chief. You can act with the
Congress and you can have inherent authority as commander in chief…”

“All I’m saying is that the inherent
authority argument, in its application, to me, seems to have no boundaries when
it comes to executives decisions in a time of war. It deals the Congress out, it
deals the courts out. And…there is a better way.”

“It strikes me that we’re going to be
in this war on terrorism possibly for decades; maybe not. But this could be the
Cold War of our generation. Maybe it doesn’t go that period of time, but it has
the possibilities of going for some extended period of time. And I share Senator
DeWine’s concern that we should look, then, at the FISA law, and make sure that
as we move forward on this, that we’re not just depending upon these
authorizations of war to say that that puts us in a superior position under the
Article II powers…”

Richard Epstein, University of Chicago law professor and
member of Federalist Society (“Specialists Doubt Legality of Wiretaps, Boston
Globe, 2/02/06)

“I find every big of this legal document disingenuous. The
president’s position is essentially that [Congress] is not doing the right
thing, so I’m going to act on my own.”

John Samples, director of the Center for Representative
Government at the CATO Institute, a libertarian think tank (“Senate target:
Bush’s war powers,” Christian Science Monitor, 2/01/06)

“The presidency, whoever is in it, has real advantages in the
struggle, but we may see that the Congress finally believes that the Bush
administration has gone too far.”

Asked if the president has the legal authority to engage in
warrantless wiretaps, McCain replied:

“You know, I don’t think so, but why not come to
Congress? We can sort this all out.
… I think they will get that
authority, whatever is reasonable and needed, and increased abilities to monitor
communications are clearly in order.”

Alan Gottlieb, founder of the Second Amendment Foundation
(“Conservatives and Liberals Want Action on Surveillance Controversy,” The
Nation, 1/18/06)

“If the law is not reformed, ordinary Americans’ personal
information could be swept into all-encompassing federal databases encroaching
upon every aspect of their private lives.”

Bob Barr, former Republican member of Congress and Chairman
of Patriots to Restore Checks and Balances (U.S. Newswire, 1/17/06)

“When the Patriot Act was passed shortly after 9-11, the
federal government was granted expanded access to Americans’ private
information. However, federal law
still clearly states that intelligence agents must have a court order to conduct
electronic surveillance of Americans on these shores. Yet the federal government overstepped
the protections of the Constitution and the plain language of FISA to eavesdrop
on Americans’ private communication without any judicial checks and without
proof that they are involved in terrorism.”

David Keene, Chairman of the American Conservative Union
(U.S. Newswire, 1/17/06)

“The need to reform surveillance laws and practices adopted
since 9/11 is more apparent now than ever.
No one would deny the government the power it needs to protect us all,
but when that power poses a threat to the basic rights that make our nation
unique, its exercise must be carefully monitored by Congress and the
courts. This is not a partisan
issue, it is an issue of safeguarding the fundamental freedoms of all Americans
so that future administrations do not interpret our laws in ways that post
constitutional concerns.”

“I believe that our executive branch cannot continue to
operate without the checks of other branches. However, I stand behind the President in
encouraging Congress to operate cautiously during the hearings so that sensitive
government intelligence is not given to our enemies.”

“If the law is not reformed, ordinary Americans’ personal
information could be swept into all-encompassing federal databases encroaching
upon every aspect of their private lives.
This is of particular concern to gun owners, whose rights guaranteed
under the Second Amendment are currently being infringed upon under the Patriot
Act’s controversial record search provisions.”

“Compared to Spygate, Watergate was a kindergarten
picnic. The Bush administration’s
lies, felonies, and illegalities have revealed it to be a criminal
administration with a police state mentality and police state methods. Now Bush and his attorney general have
gone with the final step and declared Bush to be above the law. Bush aggressively mimics Hitler’s claim
that defense of the realm entitles him to ignore the rule of the law…”

“These possible reasons for bypassing the law and the court
need to be fully investigated and debated.
No administration in my lifetime has given so many strong reasons to
oppose and condemn it as has the Bush administration. Nixon was driven from office because of
a minor burglary of no consequence in itself. Clinton was impeached because he did not
want the embarrassment of publicly acknowledging that he engaged in adulterous
sex acts in the Oval Office. In
contrast, Bush has deceived the public and Congress in order to invade Iraq,
illegally detained Americans, illegally tortured detainees, and illegally spied
on Americans. Bush has upheld
neither the Constitution nor the law of the land.”

Asked if comfortable with the president’s acknowledgement
that he authorized secret wiretap surveillance of American citizens, among
others, involved in overseas phone calls, emails, or faxes, without getting a
formal court order, Lugar replied:

“Well, I can understand in the context of 9-11 that there may
have been, in a common sense way, a reason why calls coming from the Middle East
of Afghanistan might be intercepted, but I think the Congress quite rightly is
trying to take a look at now the fact that we’re past 9-11, we’re going to have
to live with the war on terror for a long while. And whether it’s the treatment of
prisoners that we’ve been discussing, for example, or elements of the Patriot
Act, likewise intercepts are going to have to be given, I think, a pretty good
hearing.”

Asked if he wanted a hearing, Lugar replied:

“I do. I think
this is an appropriate time, without going back, and should the president ever
have tried to listen to a call coming from Afghanistan, probably of course. And in the first few weeks we made many
concessions in the Congress because we were at war and we were under
attack. We still have the
possibility of that going on, so we don’t want to obviate all of this, but I
think we want to see what in the course of time really works best, and the FISA
act has worked pretty well from the time of President Carter’s day to the
current time.”

William Safire, former speechwriter for President Nixon
(NBC’s Meet the Press, 01/01/06)

“During wartime, we have this excess of security, and
afterwards we apologize. And that’s
why I offended a lot of my conservative and hard-line friends right after
September 11th, when they started putting these captured combatants
in jail, and said the president can’t seize dictatorial power. And a lot of my friends looked at me
like I was going batty. But now we
see this argument over excessive security, and I’m with the critics on
that.”

Steve Chapman, a columnist who has identified himself as “a
small-government, pro-life libertarian,” (Chicago Tribune, 12/25/05)

“The disclosure that the president authorized secret and
probably illegal monitoring of communications between people in the United
States and people overseas again raised the question: Why?”

“The government easily could have gotten search warrants to
conduct electronic surveillance of anyone with the slightest possible connection
to terrorists. The court that
handles such requests hardly ever refuses.
But Bush bridles at the notion that the president should ever have to ask
permission of anyone.”

“I’m particularly concerned about the long-term effect of the
line we may be crossing. When we
flipped the FISA over from just foreign governments and known spies and blended
it into a gray area of the Patriot Act, we’re now talking about somebody who we
have reason to believe is connected to a foreign government, but they are a U.S.
citizen.”

“The Founders envisioned a nation where people’s privacy was
respected and the government’s business was open… These actions turn that vision on its
head. If the government is willing
to bend the rules on this issue, how are we supposed to believe it won’t abuse
the powers granted by the Patriot Act?”

Sen. Chuck Hagel (R- NE), member of the Intelligence and
Rules Committee (“Hagel: no president above the law,” Lincoln
Journal-Star, 12/22/05)

“Americans can be protected against terrorism without
violating the law or ignoring civil rights…No president is ever above the
law. We are a nation of laws and no
president, majority leader or chief justice of the Supreme Court can
unilaterally or arbitrarily avoid a law or dismiss a law. … We need wiretaps … but there’s a right
way and a wrong way to do that.”

“Revelations that the
U.S. government has conducted domestic electronic surveillance without express
legal authority indeed warrants Congressional examination. I believe the Congress – as a coequal
branch of government – must immediately and expeditiously review the use of this
practice.”

Sen. Snowe (R-ME), member of the Senate Select Committee on
Intelligence, and Sen. Hagel (R-NE), member of the Intelligence and Rules
Committee (Senators’ Letter to Judiciary Committee, 12/21/05)

“We write to express our profound concern about recent
revelations that the United States Government may have engaged in domestic
electronic surveillance without appropriate legal authority. These allegations, which the President,
at least in part, confirmed this weekend, require immediate inquiry and action
by the Senate.”

“On the assumption that Congress or a court would have been
cooperative in September 2001, and that the cooperation could have kept
necessary actions clearly lawful without conferring any benefit on the nation’s
enemies, the president’s decision to authorize NSA’s surveillance without the
complicity of a court or Congress was a mistake. Perhaps one caused by this
administration’s almost metabolic urge to keep Congress unnecessarily distant
and hence disgruntled.”

“I think if we’re going to be intellectually honest here,
this really is the kind of think that Alexander Hamilton was referring to when
impeachment was discussed.”

Sen. John Sununu (R-NH), Chairman of the Committee on
Foreign Relations Subcommittee on International Operations and Terrorism
(National Public Radio, “All Things Considered,” 12/19/05)

Asked if the NSA wiretapping was legal, Sununu replied:

“I don’t know.
It’s really difficult to say without having all the information in front
of you, and that could probably only be presented in some sort of classified
briefing. I think it does
underscore, though, the importance of looking carefully at whether or not civil
liberties are being protected, whether it’s work being done by the National
Security Administration, the NSA, or work being done by law enforcement under
the Patriot Act. We want to make
sure that there are appropriate protections in place; that objections can be
heard in front of a judge; and that people have, you know, the right to appeal
their case if they think they’ve been prosecuted wrongly.”

Asked if he agreed that the Iraq war resolution granted
authority for spying, Sununu replied:

“I don’t believe that that resolution, the use of force
resolution, was carte blanche authorization for any new and significant
expansion of domestic spying or even intelligence activity on the foreign
front. I think that the
authorization for those powers would have to be existing law, and I think there
were significant curtailments of different kinds of domestic surveillance. So I don’t believe that the use of force
resolution changed the status quo insofar as surveillance or civil liberties is
concerned.”

Sen. Lindsey Graham (R-SC), member of the Judiciary
Committee and the Armed Services Committee (Face the Nation,
12/18/05)

“If he has the authority
to go around the FISA court, which is a court to accommodate the law of the war
of terror, the FISA Act created a court set up by the chief justice of the
United States to allow a rapid response to requests for surveillance activity in
the war on terror. I don’t know of any legal basis to go around that. There may
be some, but I’m not aware of it. And here is the concern I have. We can’t
become an outcome-based democracy. Even in a time of war, you have to follow the
process, because that’s what a democracy is all about: a
process.”

Sen. Collins called the allegations of surveillance abuses
“extremely troubling.” She further stated that the report “warrants further
inquiry by Congress” and that she has asked the NSA for a full briefing.

“The
text of FISA … is unambiguous: ‘A person is guilty of an offense if he
intentionally engages in electronic surveillance … except as authorized by
statue.’… I know of no court case that has denied there is a reasonable
expectation of privacy by U.S. citizens and permanent resident aliens in the
types of wire communications that are reportedly monitored by the NSA’s
electronic surveillance program.”